#help.tut PRESS ENTER FOR HELP
#define.stb Definitions of legal terms
TUTORIAL-- FILE TRANSFER LIABILITY
A few stories about the law. Don't shut down your BBS and hide in
a sanitized packing crate. Although BBS systems have significant
liability in these areas, the liability is manageable-- with the
proper disclaimers and procedures, which will occupy the second
half of this lesson.
Scenario # 1-- The awful download
A BBS receives an upload of an innocuous looking program. Because
the sysop is careful, all files are scanned with industry
standard virus detection programs. The file passes the check and
is posted for download.
The innocuous program is in fact virus free. However, it is so
badly written (an array is dimensioned too large, and bumps into
space occupied by other programs and the operating system) that
it locks up the computer of the user. As a result, the user
doesn't finish a job on time and loses $ 1,000.
Who is liable for the negligent programming? The answer may
surprise you---
the author, and quite arguably the BBS itself!
If the user has "donated" or "paid" a fee for use of the BBS, the
download can be interpreted as a sale of a program. The Uniform
Commercial Code provides that unless warranties are disclaimed
that all products sold by "merchants" carry a warranty of
"merchantability" and other warranties. Under the law of
"products liability" a person who creates, as well as a person
who DISTRIBUTES items that will be used by consumers
Who is a merchant? Any one with specialized knowledge within a
field is a merchant. Thus, a rug seller is charged with knowing,
and behaving like someone who knows the rug trade. As a BBS
operator, you are arguably a merchant in the area of computers
and software.
Warranty liability can be lessened, or even excluded by the
proper use of disclaimers. However, under the modern law of
products liability, warranty liability cannot be disclaimed if
a party introduces a product into the stream of commerce and it
is used without inspection for flaws.
Therefore, if the BBS system requires that users inspect the
program for flaws, it is no longer subject to products liability
under the products liability law. Therefore, our disclaimers
require that the user test the file himself.
